COURT FILE NO.: FS-16-0205-01 DATE: 2019-01-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Derek Thomson Self-Represented Applicant

• and -

Nadine Villeneuve L. Conti, for the Respondent Respondent

HEARD: Via Written Submissions at Thunder Bay, Ontario

Madam Justice T. J. Nieckarz

Decision On Costs

[1] The issue that I must determine is that of costs following the motions of each party that were heard on August 16, 2018.

[2] There were two motions before the Court on August 16, 2018, namely:

a. The motion of the Applicant (“Father”), in which he sought:

i. Interim care of the parties’ child, Lucas Donald Alexander Thomson (born February 26, 2016) (“Lucas”), while the Respondent (“Mother”) completed her program of education in Timmins, Ontario; and

ii. Joint legal custody of Lucas.

b. The motion of the Mother, in which she sought various relief, but primarily:

i. An Order that she be permitted to move the Child’s residence from Marathon, Ontario to Timmins, Ontario forthwith;

ii. An Order for sole custody of the Child or in the alternative joint custody with primary care and control and final decision making authority in the event of a disagreement;

iii. An Order providing for access as between the Father and the Child as follows:

A. Six consecutive days per month in Marathon with exchanges to take place on a day and time to be agreed upon by the parties;

B. The driving shall be shared equally by the parties with the Father picking Lucas up in Timmins at the start of the visit and the Mother picking Lucas up in Marathon as the end of the visit;

C. Exchanges will take place at an agreed upon location in Timmins and at the Father’s parents’ home in Marathon;

D. Reasonable access on reasonable notice via telephone or other electronic means, limited to once per day;

E. Specified holiday access as agreed by the parties; and

F. Further access as agreed upon by the parties.

iv. An Order for income disclosure in the form of the Father’s 2017 income tax return and notice of assessment along with verification of his year to date income for 2018.

[3] I released my decision on August 30, 2018. That decision provided for:

a. joint legal custody to the parties;

b. primary care and control and day to day decision-making to the Mother;

c. relocation of Lucas, with the Mother, from Marathon to Timmins, Ontario;

d. access to the Father from Wednesday until Sunday alternate weeks, to coincide with the Father’s work schedule, unless the parties agree to a different schedule;

e. a sharing of the driving obligations with the Father picking Lucas up on Wednesday from Timmins and the Mother picking him up from the Father on Sunday in Marathon; and

f. while I expressed doubt as to whether this was a case for costs or not, I invited the parties to make submissions as to costs, if they so choose.

[4] The Mother claims that she is the successful party on the motions and seeks her full recovery costs, fixed in the amount of $4,365.38. She takes the position that the Father’s conduct in bringing his motion was unreasonable in that he did not negotiate the issues with her in good faith, but simply moved to litigate. She also takes the position that the outcome of the motions were as good for the Mother, if not better than her initial offer to the Father. The Mother also seeks to have any costs award enforceable as child support. The Father has not filed any submissions in response to the Mother’s request.

The Law:

[5] Rule 24(1) of the Family Law Rules provides that a successful party is presumptively entitled to their costs. In determining whether a party has been successful, the court should take into consideration any settlement offers that were made and the position that each party took in the case: Darling v. Booth, 2017 ONSC 6261, at para. 19.

[6] Rule 24(6) provides that if success in a step in a case is divided, the court may apportion costs as appropriate. Rule 24(5) requires the court to also take into consideration the reasonableness of the parties having regard to:

(a) the party’s behaviour in relation to the issues from the time they arose, including whether party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

[7] The factors to be considered in quantifying costs are set out in Rule 24(11) as follows:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[8] In determining the amount of costs the court must also keep in mind that a costs award should represent a “fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs of the successful litigant”: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (Ont. C.A.). A “fair and reasonable amount” is that which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation: Lupien v. Carmichael, 2017 ONSC 2929, at para. 9.

[9] The three fundamental purposes of modern costs rules are:

1. to partially indemnify successful litigants for the cost of litigation;

2. to encourage settlement; and

3. to discourage and sanction inappropriate behaviour by litigants:

Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (C.A.), at para. 8; Sickinger v. Sickinger, 2017 ONSC 2612, at para. 11.

[10] As Justice Desormeau pointed out in Darling v. Booth, at para. 8:

Rule 2(2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. This provision needs to be read in conjunction with Rule 24 of the rules: Sambasivam v. Pulendrarajah, 2012 ONCJ 711, [2012] O.J. No. 5404 (Ont. C.J.); Lawrence v. Lawrence, 2017 ONCJ 431, at para. 28.

Analysis:

The Successful Party:

[11] Determining the successful party in relation to the positions each party took in a case such as this can be difficult. There were multiple issues with each party achieving some success on various issues. For example, the Mother was the successful party on the relocation and primary care issues, while the Father’s position prevailed on the issue of custody. The outcome for the Father on the issue of access was more favourable to him than the position taken by the Mother at the hearing of the motions.

[12] Despite the number of issues, the primary focus of the parties at the hearing of the motions was the issue of whether the child should relocate to Timmins, Ontario with the Mother or remain in Marathon with the Father and his family. On this issue, and the companion issue of whether the Father should be the primary caregiver while the Mother’s position at the hearing of the motions prevailed.

[13] With respect to the offers to settle, the Mother takes the position that the correspondence sent to the Father by the Mother’s lawyer, dated June 26, 2018, contained a proposal that was just as, or more favourable to the Mother than the result of the motions. I do not agree with this submission. The letter dated June 26, 2018 was nothing more than an invitation to participate in negotiations as to the terms of the Mother’s relocation with the child. While the Mother expressed a willingness to negotiate a reduction in child support, access and transportation for access, the proposal lacked any specificity. For example, while the Mother indicated she was prepared to transport Lucas to Marathon for access, she did not indicate what that access would be other than to state that she was willing to discuss extending access time during the school holidays when Lucas became of school age. There is a reference in the letter to the Father having exercised access of approximately six days per month, and so presumably this was the Mother’s intention with respect to ongoing access. The access ordered by me was alternate weeks from Wednesday until Sunday, which is greater than six days a month. Additionally, the Mother’s access proposal was that the Father would have Lucas only once a month, for a six-day period. The Father would have been out of town working for the first few days of this access, giving him only three or four days a month with the child. This is significantly different than what was ordered.

[14] I also do not agree with the submission of the Mother that the Father did not negotiate the issues in good faith, but rather “blindsided” the Mother by bringing his motion. It is noted that originally the motion was without notice, but that Justice Pierce required the Father to serve the Mother.

[15] On July 5, 2018, the Father promptly responded to the Mother’s June 26th correspondence with a lengthy letter setting out his position and the reasons for it. The Father provided for two options; one that saw Lucas remain in Marathon and the other, which saw Lucas relocate with the Mother. The offer permitting the move provided the Mother agree to:

• joint custody
• access to continue from Wednesday until Sunday alternate weeks
• the Mother to drive the child to and from Marathon for access
• 50% of the summer months in Marathon; and
• Child support determined based on the Father’s 2018 salary of $61,000.

[16] The parties did not argue the issue of child support before me, nor did they address holiday access. The primary focus was the move and what the Father’s access would be in the event of the move. The Father’s proposal of joint custody and access alternate weeks from Wednesday to Sunday was the order of the court. The Father’s proposal with respect to transportation differed from my order, which provided for shared responsibility. I am not in a position to assess the reasonableness of the Father’s offer with respect to child support.

[17] The foregoing, while not formal offers under Rule 18, did represent the settlement positions of the parties prior to either motion having been brought. Combined with the issues argued at the motion, and keeping in mind that the primary issue was relocation, I find that the Mother was the successful party on this issue, although not fully so because of the importance of the companion issue of access. I have factored this into my decision with respect to the amount of costs awarded.

Quantum of Costs:

[18] The Mother claims costs in the amount of $4,365.38. The Bill of Costs filed does not provide for additional amounts for disbursements. H.S.T. does not appear to be included in the total claimed.

[19] In considering the Rule 24(11) factors, I find:

A) The importance, complexity or difficulty of the issues:

[20] While the issues were not complex, the relocation, custody and access issues relating to the parties’ only child were of great importance to them.

B) The reasonableness or unreasonableness of each party’s behaviour in the case:

[21] Upon reviewing the materials filed in support of the motions, and upon reviewing the Mother’s submissions as to costs I cannot find that the behaviour of either party was unreasonable. Relocation cases are extremely difficult and emotional ones for the parties. There is a lot at stake for each parent, and indeed for the child. This case also had the added element of some urgency to the issue, given that the Mother sought to relocate no later than September 2018 for the commencement of her program of education. Both parties made a brief attempt to resolve the case, focused their materials on the issues, responded to one another in a timely fashion with respect to proposals, were respectful in tone and cooperated to have the matter placed before the court in a timely fashion. While the Father’s initial attempt to bring his motion without notice was misguided, this did not add to the Mother’s costs, who only became aware of this attempt once served.

C) The lawyer’s rates:

[22] The rate claims of $122.78 on a full recovery basis is more than reasonable for a lawyer with Ms. Conti’s knowledge in family law, experience and years of call.

D) The time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order:

[23] Ms. Conti claims 33.2 hours for herself and 8.9 hours of law clerk time. The time spent by Ms. Conti, given the importance of the issues to the Mother cannot be said to be unreasonable. The only concerns I have is with respect to the fact that the law clerk time claimed is more akin to secretarial tasks, there is some time claimed for financial issues that were not argued, and there is one entry for negotiating access following the motion.

E) Expenses properly paid or payable:

[24] It does not appear that any expenses are claimed.

F) Any other relevant matter:

[25] Other than the divided success on various issues on the motion, and the costs that a party may expect to pay on a matter such as this, there were no other factors considered by me.

[26] In light of the foregoing, costs are fixed in the amount of $2,000 inclusive of H.S.T. and disbursements. I appreciate that this is a substantial reduction of the full amount claimed by the Mother. This reduction takes into consideration the factors outlined above and the divided success of the parties.

Enforcement of Costs Awarded as Child Support:

[27] The Mother seeks to have the costs awarded enforceable as child support. The Mother states that this is the best way to ensure that she will be paid. She relies on s. 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 and specifically the definition of “support order”:

1(1) In this Act,

“support order” means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for,

(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance…

[28] The key words in s. 1(1)(g) are: legal fees or other expenses arising in relation to support or maintenance. None of the costs awarded in this case are in relation to support or maintenance. I therefore decline to order the costs awarded enforceable as child support.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

Released: January 15, 2019